Harris County's runaway grand jury: a blawgosphere summary

On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.

Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:

"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)

"The BAT van show-cause order," Defending People (Nov. 2, 2011)

"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)

"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)

"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)

"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)

"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)

"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)

"What you say can be used..." Sustained (Oct. 27, 2011)

"The plot thickens," The Defense Rests (Oct. 26, 2011)

"A rat in a trap," The Defense Rests (Oct. 26, 2011)

"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)

"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)

"Runaway jury," The Defense Rests (Oct. 24, 2011)

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

Police union targets city official who spoke out against police brutality

It would seem that Houston city councilwoman Jolanda Jones is paying the price for speaking out against the police. Ms. Jones has spoken out repeatedly about the problem of police brutality in Houston. She also raised concerns about the way the department operated its crime lab.

Now the Houston Police Officer's Union is striking back. Union vice president Ray Hunt has sent a letter to Harris County District Attorney Pat Lykos asking her office to look into whether or not Ms. Jones was practicing law without a licence last month.

This isn't the first time Mr. Hunt has been involved in lodging a complaint against Ms. Jones. He is the one who pointed out that Ms. Jones put her city office phone number on her business card. He alleged that she was using city resources to operate her private law firm. Ms. Jones was cleared of those charges when the DA's office announced there wasn't enough evidence to prove any wrongdoing.

The latest allegations stem from two legal documents signed by Ms. Jones after her license to practice law had been suspended for her failure to pay her bar dues and occupational taxes on time.

This fight isn't about Ms. Jones' ethics. This fight is about whether or not the city is going to turn a blind eye to police brutality. Earlier this year I sat with Ms. Jones at a forum on police brutality. She was the only elected city official to appear at the town hall meeting. Her willingness to speak out in such a forum spoke volumes.

Mr. Hunt and his group are involved in the classic misdirection play. Instead of focusing on the issue of police brutality, Mr. Hunt would rather throw mud at Ms. Jones in an attempt to discredit her. If you can't debate the issue on the merits, go for the dirt.

The problem with Mr. Hunt's tactics is that the cat is out of the bag now. We've seen the videos. We know that  the police beat suspects for no reason. They do it because they can and because they think they can get away with it. And for a long time they did. The city turned a blind eye to the problem - as long as it could be made to go away.

Mr. Hunt is playing the public like a little child. We all know the punishment for contempt of cop. I've had clients who have been punched, kicked or tased multiple times. If there was no video camera or eyewitness willing to testify, it was just a perp's word against a police officer. And guess who judges and juries believed.

Maybe Ms. Jones has skirted the rules. Maybe she hasn't acted ethically. Maybe she did practice law without a valid license. Those are issues with which Ms. Jones must deal. But none of that changes the fact that the police beat suspects and Ms. Jones called them out on it.

Don't fall for the misdirection play. Keep your eye on the ball.

Police look to change uniforms

According to this article in the Houston Chronicle, the Houston Police Department is looking to retire its light blue over dark blue uniform and to replace it with a more militaristic style "body dress uniform" assembly in navy blue.

Apparently there is a need for the force to use more rugged military-style uniforms when "working" the streets.

"The younger officers wanted a little more tactical, user-friendly uniform for running and tackling people. You don't go to a fight in a suit. If you're going to have to engage someone, chase someone, why not wear clothing more appropriate for the situation?" -- Gary Blankinship, President, Houston Police Officers' Union

That's just what we need in Houston, a bunch of armed men dressed like paramilitary members running and tackling people on the street. Ladies and gentlemen, the illusion is over. The police aren't out there to protect the citizenry, they're out there to assault the citizenry.

Driving while black remains a reality in Houston

New data released by the Houston Police Department shows that black motorists are more likely to be stopped by police than any other ethnic group in the city. While blacks make up 23% of the city's population, they made up 33% of all traffic stops in 2010. Latinos, who make up 44% of the city's population, made up 32% of all traffic stops. White motorists accounted for 30% of the stops.

According to the Houston Chronicle, "experts" discount driving while black as being the cause of the disparity.

Clete Snell, who chairs the criminal justice department at the University of Houston-Downtown, said many minority residents feel they have been singled out because of the number of stops in their neighborhoods. 

"Police tend to patrol more frequently in African-American neighborhoods, and in minority neighborhoods in general, and tend to make more stops in minority neighborhoods,“ Snell said.

Apparently Mr. Snell is not concerned that there are a disproportionate share of blacks in the criminal justice system and that the vast majority of defendants who cannot afford to post a bond tend to be black or Latino.

Surprisingly enough, Gary Blankinship, the head of the Houston Police Officer's Union, denies the existence of racial profiling and former HPD Chief, and current city councilmember, C.O. Bradford blames it on a few "bad apples."

Racial profiling, like police brutality, is not an individualized phenomenon. It is bred into the culture of police departments all across this country. Police brutality comes from a culture in which the questioning of "authority" is considered a sign of disrespect. Maybe that's how it works at the police station -- but that ain't reality on the street. But police culture doesn't account for such subtleties.

Racial profiling has always played a role in police work - going back to the days of Jim Crow when the police were used to enforce the laws of segregation. The primary role of the police was to keep whites and blacks separate, or, more accurately, to keep blacks on "their side" of town. That ethos still holds true today as large swaths of our cities and towns are segregated.

Until we examine the role that law enforcement has played in preserving inequality in this country, police brutality and racial profiling will continue to endure - no matter how much sensitivity and diversity training we require of the boys in blue.

Holy piece of junk, Batman!

There were some folks who thought I was a bit off the mark when I dared to criticize HPD's BATmobiles. Turns out I was right.

We've got vans with wiring problems that renders the breath test machines inoperable. The air conditioning doesn't work in one van and that's not good for a machine that's temperature sensitive. Yep, that's how we take care of our "instruments" here in Space City.



The police won't even acknowledge the problems to the Harris County District Attorney's Office -- of course that cat's out the bag by now. Heaven forbid folks find out that the money used to purchase and maintain (sort of) the BATmobiles might as well have been used to light the charcoal in the grill.

The lieutenant was worried about having to, quote, "explain what these problems can do to pending court cases."


"The lieutenant may think there's a problem, but I don't see that there's a problem," Driskell said.


And the DA's office has never been told of any of the maintenance problems we've uncovered.

"It's not that we're trying to hide it, but I don't see a need in telling them that. If they wanna know that, we'd be glad to share that information," Driskell said.

It's not about getting drunks off the streets. It's about raking in that grant money. We're churning and burning, baby, just send the check. The DPS is in on the scam, too, charging motorists $3,000 for a DWI conviction. Budget shortfalls -- let's just increase the user fees on our roadways. Just think of all that fine money and surcharge payments.

But it's all right because it's all in the name of public safety. Isn't it?

To the batcave, Robin

Stop me if you've heard this one before - the Houston Police Department, along with the Harris County DA's Office and MADD announced a new initiative aimed at combating that bogeyman of bogeyman - drunk driving.

The Houston Police Department's latest state-of-the-art weapon to combat drunk driving.

This time the state's weapon of choice is the BATmobile. The breath alcohol testing vehicle contains an intoxiliar machine so that the police can offer breath tests to motorists arrested for DWI on the spot. Note that I didn't say motorists suspected of driving while intoxicated. That's because in Texas, in order for a breath test to be admissible, the motorist must be under arrest at the time the officer requests a breath sample.

The breath test machine is, if you listen to prosecutors and officers, a scientific "instrument" designed to detect the alcohol concentration in someone's blood -- based on how much alcohol is in their breath. Like many sci-fi shows, you have to suspend reality to understand how this modern day relic of the alchemists works.

I don't know too many scientific instruments that labs keep in rooms such as the intox video rooms at HPD. I've always thought scientific instruments should be kept in pristine labs that are kept clean of all contaminants so that the measurements taken are as accurate as possible. But maybe that's just me.

These breath test machines are maintained by the Knights Templar of the police state -- DPS licensed technical supervisors who are supposed to perform regular maintenance on the machines and testify in court that everything is hunky-dory with the machine. But how much testing is performed to determine whether moving the machine from location to location affects its ability to do whatever the hell it's supposed to do? How much testing is performed to determine if the communications systems in the BATmobiles interferes with the machine's innards? How much testing is performed to determine if the machines are affected by the ambient air both inside the van and outside in the real world? More importantly, has the (pseudo)scientific director of the DPS approved this new initiative?

The more things change, the more they stay the same

I sat on a panel at a community meeting on police brutality on Tuesday night and listened as dozens of folks spoke of incidents in which they or their loved ones were the victims of police intimidation or brutality. One of the speakers was Janie Torres, the youngest sister of Jose Campos Torres, who was beaten by the police and then dumped into Buffalo Bayou in handcuffs back in 1977.

We heard from a young man who was working at a local grocery store late one night when the police made a traffic stop. He stopped to watch. Apparently the officer didn't appreciate someone watching him and he approached the young man -- who was wearing his work clothes. He told the young man he looked suspicious (he was sweeping around the gas pumps). He searched the young man's car - and even put a drug dog in the car - looking for anything he could use to arrest him. After trashing the car he escorted the young man inside the store and continued to harass him. The young man told the officer he had a concealed handgun license and when the officer asked for the gun, the young man pointed to his bag. The officer then took the gun and pressed it to his head before leaving.

We heard from a mother whose 52 year-old son suffered from a mental disorder. She called 911 while he was in the midst of a psychotic episode expecting a crisis intervention team to respond. The police came instead. Her son was tased 18 times before he was handcuffed and beaten. When it was all over, her son was dead. The officers had broken his neck while beating him.

Another woman told us of how her daughter, who also suffered from a mental disorder, was killed by the police as she walked down the street. Again, instead of a crisis intervention team, five patrol cars responded to the call. She was shot at close range. The official story? She had a gun. There was no gun.

We also heard from a mother whose son was involved in a car with HPD officers in 1998. When he was finally stopped, seven officers surrounded his truck and fired more than 50 rounds into the cab. She found out about the shooting while watching the news. When she asked the department what happened, no one would speak to her.

From Jose Campos Torres to Randall Webster to Ida Delaney - police brutality has been a way of life in this city for a very long time. The fact that Chad Holley was beaten by the police isn't new. The fact that there was  a video of the assault on this young man is.

The Harris County District Attorney's Office seems to think that all they can do is charge the officers involved with misdemeanor assaults. I would suggest that Ms. Lykos open up her copy of the penal code and look at Chapter 22:

AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:
(1) by a public servant acting under color of the servant's office or employment;
(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(3) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime.
(c) The actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant.

Mr. Holley suffered neurological damage to his face as a result of the beating. Mr. Holley was struck by a patrol car. The officers were armed. I'm curious to know if the officer who thought it was a good idea to kick Mr. Holley repeatedly was wearing steel-toed boots.

If the state wants to allege that a car is a deadly weapon in an intoxication manslaughter case, why isn't the patrol car considered a deadly weapon in this case? You can believe that if a citizen were accused of assaulting another and he was carrying a gun, he would be charged with aggravated assault -- whether or not he used the gun. But if an officer commits an assault while carrying a weapon the DA's Office just turns a blind eye, holds up their hands and claims they did all they could do.

The old saw is that the DA could indict a ham sandwich if he wanted. Since the state is the party presenting cases to the grand jury, the state decides how hard to push a case. If the DA wants a case to go away -- just present it to the grand jury and let them know the DA doesn't care if the case is indicted. Then, when the grand jury no-bills it, the DA can tell the public that she had nothing to do with the case being dismissed. Marc Brown, who presides over the 180th Judicial District Court, presented the Holley case to a grand jury. The officers were charged with misdemeanor assaults. This is the same Marc Brown who campaigned that he had integrity and was tough.

When this issue of police brutality is raised at a city council meeting, the mayor, Annise Parker, waves her hand and tells the council and the audience that a public meeting is not the correct forum to discuss police brutality. What then, Ms. Parker, is the correct forum? We all know it happens. Until we acknowledge that fact, nothing will be done to stop it.

As Robert Muhammad told the crowd "Police chiefs, mayors and district attorneys come and go, but the problem persists."

See also:

"Houston residents outraged over videos of police brutality," Reuters (Feb. 15, 2011)
"Town hall meeting on HPD violence draws hundreds," Houston Chronicle (Feb. 16, 2011)

Casting a light on the underbelly of the city

For months the Harris County District Attorney's Office fought to prevent the video of Chad Holley being beaten by members of the Houston Police Department from the public.

I'm a criminal defense attorney. It's my duty to defend the Constitution - regardless of how unpopular the cause might be. Some of my colleagues are defending the officers accused of beating Mr. Holley while he was down and defenseless.

One of my colleagues, Mr. Chris Tritico, wrote an opinion piece for the Houston Chronicle yesterday in which he argued against the release of the video. He argued that the video should have been kept under wraps until the officers stood trial for their alleged misdeeds.

I was as disturbed by the images on the Holley video as anyone. That is why Harris County District Attorney Pat Lykos got it right the first time. This video should have been seen for the first time in the courtroom. The court of public opinion is not the place to try these officers or anyone else.

Unfortunately Mr. Tritico aligned the interests of the Harris County Criminal Defense Lawyers Association (of which I am a boardmember) with that of the Harris County District Attorney's Office. Ms. Lykos did not "get it right" when she fought tooth and nail to prevent the public from seeing that video. Ms. Lykos wasn't concerned with whether or not the officers involved received a fair trial. That's never been the concern of the DA's office.

Ms. Lykos was scared of how the public would react to seeing what those of us in the courtroom know happens more often than anyone cares to admit. She was scared to death of how the public would react to the knowledge that those who are sworn to protect us and uphold the law are a lawless force unto themselves. She was scared that juries, having seen the video, would believe defendants who testified that they were beaten by the police. She was scared that juries wouldn't give the boys in blue the benefit of the doubt when questions arose regarding the legality of a search. She was scared juries wouldn't put their blind trust in the testimony of a police officer on the witness stand.

The release of this video, its airing and the rush to judgment by those who know better is a direct assault on the Bill of Rights. Lawyers on both sides of the docket have opined after the video was made public that these defendants will have a hard time getting a fair trial now. They are absolutely right.

The airing of the video is not an assault on the Bill of Rights. The video was obtained through the discovery process in a civil proceeding. A private citizen provided local television stations with copies of the video. The video ran on the evening news. There was no state action to deprive the officers of their right to a trial by a jury of their peers. There was no illegal search. The officers' right to remain silent was not violated.

A civil judge need not be concerned with the goings-on at the criminal courthouse. A criminal judge has no more authority than a civil judge.

The assault on the Bill of Rights is a daily battle fought at 1201 Franklin. The police, prosecutors and judges are all complicit in laying siege to our constitutional rights.

Our Constitution will be rendered a nullity the day that we take away any of the rights given to the people simply because we do not like what someone has been accused of doing. This includes the right to a public trial by an impartial jury and the fact that everyone accused of a crime is presumed innocent until proven guilty by that same impartial jury.

Our Constitution will also be rendered a nullity should we decide to ignore the First Amendment because the information may not be favorable to our position. Outside a protective order in the civil case, no agency of the state had any authority to prevent the video from being shown on the local news.

And, make no mistake about it, this is news. From a young age we are told the police are here to help and protect us. Most folks still believe that. Those of us who work in the trenches know the truth. We know that officers lie under oath. We know that officers plant evidence. We know that officers bend the truth in their offense reports. We know that officers beat and kill people. It's an ugly truth. It's a truth that I fight with when my daughters ask me about the police. If no one trusts the police society begins to break down.

I can assure Mr. Tritico that there will be twelve citizens who have no clue whatsoever what happened to Mr. Holley. There are plenty of people in this city who haven't the slightest idea what's going on outside their little bubble.

Lest anyone be confused, although I serve on the board of the HCCLA, in no way do I represent that I speak for the organization. I speak for myself.

Police brutality in action

Courtesy of KTRK-13 in Houston and Quannel X, this is the actual video footage of the beatdown of burglary suspect Chad Holley by members of the Houston Police Department.

You will see Mr. Holley getting clipped by a patrol car, falling to the ground, rolling onto his stomach and putting his hands behind his head. Then you will see members of Houston's finest kicking and punching Mr. Holley while he is on the ground.

Anyone who thinks this is an isolated incident is naive. It's just that, more often than not, these incidents take place away from security cameras.



I had a conversation with a client's mother today who couldn't understand why the prosecutor wouldn't dismiss a case against her son. I told her it was because when a prosecutor reads an offense report, he takes it as the gospel truth. Prosecutors either don't realize, or don't care, that offense reports, particularly the reason for the encounter, have more in common with historical fiction than the truth.

Of course when the only person who can challenge the assertions made in the report is the person who arrested, you can almost lie with impunity -- so long as there's no video camera around.